Citation Nr: 0304331
Decision Date: 03/10/03 Archive Date: 03/18/03
DOCKET NO. 94-06 956 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Togus,
Maine
THE ISSUE
Entitlement to service connection for a hearing loss.
(The issues of entitlement to service connection for
gastrointestinal condition, to include throat/esophagus and
digestive disorders; a bilateral foot disorder, to include
jungle rot; and arthritis of the pelvis, thoracic spine, and
lumbar spine will be the subject of a future decision.)
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
M. Salari, Counsel
INTRODUCTION
The veteran served on active duty from January 1942 to
September 1945.
This matter comes to the Board of Veterans' Appeals (Board)
from a rating decision of the Togus, Maine, Regional Office
(RO). In September 1999, the Board reopened the issue of
entitlement to service connection for hearing loss, and then
remanded the issue for further development. The case has
since been returned to the Board.
This matter also comes to the Board concerning the issues of
entitlement to service connection for gastrointestinal
condition, to include throat/esophagus and digestive
disorders; a bilateral foot disorder, to include jungle rot;
and arthritis of the pelvis, thoracic spine, and lumbar spine
disorders. The Board, however, is undertaking additional
development on these matters pursuant to 38 C.F.R. §
19.9(a)(2) (2002). When the development is completed, the
Board will provide notice of the development as required by
38 C.F.R. § 20.903 (2002). After giving the notice and
reviewing any response to the notice, the Board will prepare
a separate decision addressing these issues.
Finally, on appeal the veteran appears to raise the issue of
entitlement to service connection for skin cancer. This
issue, however, is not currently developed or certified for
appellate review. Accordingly, this matter is referred to
the RO for appropriate action.
FINDING OF FACT
Resolving reasonable doubt in the veteran's favor, bilateral
hearing loss is related to service.
CONCLUSION OF LAW
Bilateral hearing loss was incurred in-service. 38 U.S.C.A.
§§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102,
3.159, 3.303, 3.326, 3.385 (2002).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
The veteran's service records indicate that he served as a
boatswain's mate while on active duty.
The service medical records are devoid of complaints or
findings pertaining to a hearing loss. A September 1945
separation examination noted no pertinent abnormalities.
Whispered and spoke voice hearing studies revealed 15/15
hearing bilaterally.
A VA application for hospital treatment or domiciliary care,
received in February 1949, indicates that the veteran was a
merchant seaman. The application also notes that he had been
seen Brighton Marine that morning, and that he had sinusitis
and otitis media in the left ear.
In an October 1950 letter, the veteran reported that in 1949,
he was diagnosed with acute sinusitis, catarrh, and otitis
media. The veteran stated that he developed these developed
in his living quarters aboard a shipping vessel.
A medical document from the Maine Medical Center notes that
the veteran underwent a left myringotomy in February 1949.
The diagnosis was left otitis media.
A March 1970 medical report from the Maine Medical Center
indicates that the veteran was seen for unrelated conditions.
His medical history included undergoing a drainage of right
ear abscess "years ago." Pertinent physical examination
revealed right tympanic membrane scarring. The left tympanic
membrane was normal.
An April 1970 VA examination report indicates, in pertinent
part, that the veteran reported that he had been seen in 1948
at the Maine Eye and Ear infirmary for acute sinusitis,
drainage of ear, and catarrh. Examination of the ears showed
right tympanic membrane scarring due to otitis media. There
was no ear drainage. The veteran denied having any debris.
Private medical records from the Maine Medical Center
indicate that in 1980, the veteran was seen for an unrelated
condition. Examination at that time noted, in pertinent
part, that the ears showed no decreased acuity or discharge.
In April 1997, Martha L. Friberg, D.O., stated that
notwithstanding the veteran's age, his hearing loss started
at an earlier age due to the lack of protection from acoustic
injury while serving during World War II. Dr. Friberg noted
that there were no contributing factors due to inheritance,
and that the appellant was a non-smoker, non-drinker, and
non-diabetic, with no cardiac history. Dr. Friberg reported
that the veteran was initially seen in 1995 for a renewal of
Coast Guard Captain's license, and that his hearing had
deteriorated since. Dr. Friberg additionally noted that the
veteran served on submarine chaser vessels in-service, that
he served as a gun captain supervising operations of 3:23 and
3:50 guns, and that he had to stand close to 20 mm and 40 mm
rapid fire guns.
An October 1997 VA ear diseases examination report states
that the veteran was reportedly engaged in ship board action
during several invasions. At that point, he was exposed to
significant obvious loud noise levels. The veteran
reportedly noted hearing loss in the service, especially
after exposure to hazardous noise levels onboard the ship and
this hearing loss had persisted to the present time, with
increasing severity. Following an examination the examiner
stated that the veteran had a history of significant noise
exposure during combat service, that his hearing loss had
persisted to the present time, and it would seem somewhat
obvious that the a hearing loss had its onset in service.
The examiner also stated that audiometric testing in the
1940's was somewhat primitive and essentially worthless.
An August 2000 audiology examination noted that the veteran
had bilateral sensorineural hearing loss.
A July 2001 VA addendum noted that an extensive review of the
veteran's medical and service records was performed. All
hearing screenings and audiograms that were performed during
and post-service were reviewed. The only hearing screening
that could be found in his medical record was the
aforementioned September 1945 whispered voice study. The
examiner noted, however, that the whisper voice test was
often influenced by many variables such as distance, noise,
reverberation, room acoustics and examiner's voice intensity.
The examiner stated that he had seen some medical records
showing normal whisper tests, and a short time later, the
patient had a full audiology evaluation using audiometer
which revealed hearing loss.
The examiner noted further that due to the fact that no
definitive thresholds were ever established while on active
duty, the possibility of hearing loss could not be ruled out.
The examiner stated that it could be stated that the veteran
was stationed aboard a military vessel and was more likely
exposed to a great deal of ship noises (hazardous noise).
The exposure to these noises could have caused a decline in
hearing. The veteran showed a high frequency sensorineural
hearing loss, the configuration of which was frequently seen
in those who have been exposed to hazardous noise.
Therefore, the examiner concluded that it was likely, at
least in part, that the veteran's high frequency hearing loss
was related to his military career.
Analysis
There has been a change in the law during the pendency of the
veteran's claim. The Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA),
significantly added to the statutory law concerning VA's
duties when processing claims for VA benefits. This law
redefines the obligations of VA with respect to the duty to
assist and includes an enhanced duty to notify a claimant as
to the information and evidence necessary to substantiate a
claim for VA benefits. To implement the provisions of the
law, VA promulgated regulations codified at 38 C.F.R. §§
3.102, 3.156(a), 3.159, 3.326(a) (2002). Because, however,
the Board is granting entitlement to service connection for
hearing loss further discussion of the VCAA is unnecessary.
In general, service connection may be awarded for disability
resulting from injury or disease incurred in or aggravated by
active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).
Direct service connection may also be granted for any disease
diagnosed initially after discharge when all the evidence,
including that pertinent to service, establishes that the
disease was incurred during service. 38 C.F.R. § 3.303(d).
However, "[a] determination of service connection requires a
finding of the existence of a current disability and a
determination of a relationship between that disability and
an injury or disease incurred in service." Rabideau v.
Derwinski, 2 Vet. App. 141, 143 (1992).
When a claimant seeks service connection for a hearing loss
there must be a showing by medical evidence that specific
audiometry standards required to establish a hearing loss as
a disability for VA purposes have been met. Otherwise, a
hearing loss will not be regarded as a disability. For
impaired hearing to be considered a disability under the laws
administered by VA, the auditory threshold for the
frequencies 500, 1000, 2000, 3000, and 4000 Hertz must be 40
decibels or greater in any of those frequencies, or 26
decibels or greater in at least three of them, or speech
recognition scores using the Maryland CNC Test must be less
than 94 percent. 38 C.F.R. § 3.385.
In this case, the service medical records do not show any
complaints or findings pertaining to a hearing loss.
Further, the clinical record does not show competent evidence
of a hearing loss until decades after his separation from
active duty. Still, at least two physicians, including a VA
physician who examined all the evidence of record, have
suggested that it is at least as likely as not that a current
hearing is related to the appellant's active duty service.
Accordingly, as the Board may not substitute its own medical
opinion for that provided by competent examiners the Board
finds that the evidence is in equipoise. Hence, service
connection for a hearing loss is granted.
ORDER
Service connection for a hearing loss is granted.
____________________________________________
DEREK R. BROWN
Veterans Law Judge
Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.